Games on Trial

On Tuesday, November 2, while the rest of the country was voting, the Supreme Court of the United States heard oral arguments in Schwarzenegger v. EMA, the landmark case in which the state of California is petitioning for the re-instatement of a California law banning the sale of "deviant or morbid" violent videogames to minors.

The Supreme Court has long held that First Amendment rights provide broad protection against censorship of speech. In ten prior federal court decisions, lower judges have uniformly held that video games are protected as speech, just like books, comic books, movies, and music. However, California is arguing that video games are special for two reasons: First, because the level of violence is "deviant" or "obscene"; and second, because of the "the interactive nature of gaming." That is, the state can censor violent games, even though it can't censor violent books or violent movies, because the level of violence is so deviant as to be obscene, and because the consumer of a videogame is actively engaged with the content, rather than merely consuming it.

The case is unquestionably the most important legal challenge to ever face the videogame industry. If California wins the case, similar laws are certain to spring up in other states, and the chilling effect on the development of videogames for adults could be profound. In order to avoid huge liability, major game retailers, such as GameStop and Walmart, would have to restructure their entire business model to ensure minors are not sold games. These businesses may decide that it is more cost effective to not stock or sell these games all together! In addition, businesses with an online distribution model are even less able to ensure the purchaser of the game is not a minor. They might be required to geo-target any state with such a law to forbid any mature games being sold there as the only way to avoid liability under this bill.

How, then, can we expect the Supreme Court to rule? Unfortunately for the videogame industry, it's an open question. The justices were very split. Justice Antonin Scalia, Justice Sonia Sotomayor, and Justice Elena Kagan seemed inclined to side with the game industry, albeit for different reasons.

Justice Scalia, a Constitutional originalist, was the staunchest supporter of the First Amendment rights of videogame creators and consumers, saying "I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech.... It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition... What's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children?" He also did not buy California's argument that the technology of games made them special, pointing out, "This same argument could have been made when movies first came out. They could have said, 'Oh we've never had violence in Grimm's fairy tales, but we've never had it live on the screen...' Every time there's a new technology, you can make that argument." He then sarcastically suggested "You should consider creating...the California office of censorship. It would judge each of these video games one by one. That would be very nice."

Justice Kagan was not as vocal about the First Amendment generally, but she clearly did not buy the state's argument that video games were harmful. "Do you actually have studies that show that video games are more harmful to minors than movies are?" she inquired. More tellingly, she asked the state's attorney "[Do] you think Mortal Kombat is prohibited by this statute?" When he said yes, her disbelief was palpable: "Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing?"